Correctional Services A/B: DCS briefing on public submissions; Divorce A/B; RICA Bill & Cannabis for Private Purposes Bill: DoJ&CD briefing; with Deputy Minister

Meeting report

The Chairperson greeted Members on the platform, and acknowledged the presence of Deputy Minister of Justice and Constitutional Development, Mr John Jeffery.

She said the Select Committee had received a briefing on the Correctional Services Amendment Bill on 18 October. After that, the Bill had been advertised for public comments from 27 October to 10 November. Three submissions were received, comprising two individual submissions and one that an organisation made. The individual submissions were more general in nature, while the organisation's submission was more specific.

DCS responses to public submissions on Correctional Services Amendment (CSA) Bill

Mr Jacques van Wyk, Legal Services, Department of Correctional Services (DCS), said the two individual submissions were received from Luyema Ngozo and from Nkosinathi Gabuza. Just Detention International made the organisational submission.

Members of the public had raised issues such as inmates’ skills development, tough sentences for violent crime offenders, amending the definition of sexual violence, the use of gender binary pronouns, etc.

The DCS’s response to the public submissions were:

• The DCS welcomes and appreciates the public comments received pertaining to the CSA Bill, the principal Act in general, and proposals to enhance the performance of the Department’s mandate. The submissions have been duly considered and are of critical importance to the DCS.
• It is noted that most of the contents of the submissions relate to the principal Act, and not necessarily to the specifics of the CSA Bill and the objects of the Bill. These submissions will be fully considered during the greater review process of the principal Act.
• The CSA Bill seeks, in the main, to cure the impugned sections 88A and 91 of the principal Act. Further urgent issues related to the Judicial Inspectorate for Correctional Services (JICS) are inserted into the Bill to strengthen the independence of JICS and to enhance cooperation between the DCS and JICS.
• The JICS Bill, which is being processed for submission, together with the establishment of JICS as a government component, will ultimately repeal and amend all relevant provisions in the Principal Act concerning JICS, and the content of all submissions received will further be considered during that process.
• It serves to mention that the CSA Bill, 2023 was extensively consulted with, amongst others, the JICS, and the parties reached consensus on the contents thereof insofar as it relates to the compliance with the Sonke judgment and having regard to the impending deadline of 3 December 2023.
• The Office of the State Law Adviser (OCSLA) also found the CSA Bill to be constitutionally valid and supports the Bill. In addition, Cabinet also endorsed the Bill and recommended its introduction into Parliament.

(See document attached)

Discussion

The Chairperson said that one of the issues around the Bill was the urgency for the ministry to introduce it.

As no comment was made by any Committee Member, the Chairperson indicated that the Select Committee would process this Bill in the next meeting.

Department of Justice & Constitutional Development (DoJCD) briefing on Divorce Amendment Bill

The Divorce Amendment Bill amends the Divorce Act 1979 to give effect to the Women's Legal Centre Trust v President of the Republic of South Africa and Others. The Constitutional Court gave Parliament until 28 June 2024 to amend the Divorce Act.

Deputy Minister’s comments

DM Jeffery said that the Bill before Members sought to address the grey area within many Muslim marriages. The situation was that many Muslim couples, though having married in terms of Islamic Law, did not register at the Department of Home Affairs (DHA) for a civil marriage. Those marriages were therefore rendered as marriages that fell outside of the legal system according to the current Divorce Act. The problem arose particularly for divorced women, as they were often left destitute and had to approach the court for assistance. It was within that context that the Constitutional Court had ordered Parliament to amend the Marriage Act, as well as the Divorce Act, to include Muslim marriages in such cases.

However, he pointed out that the amendment did not amend Sharia Law, because it provided a person who is or was in a Muslim marriage only the right to approach a civil court for a divorce. Similar to the Roman Catholic Church, it does not grant divorce; it grants a divorce pathway through a civil court.

The Bill was supported by all political parties with the exception of Al Jama-ah, as its party member (Mr Hendricks) had said that the Bill was no longer necessary because the Department of Home Affairs (DHA) did provide for Muslim marriages. However, this Bill aimed to accommodate those people who did not register their civil marriage at the DHA.

Ms Amanda Botha, Legal Advisor, DoJCD, briefed the Committee on the Bill, clause-by-clause.

Clause 1

Defines a “Muslim marriage,” and is as broad and all-encompassing as possible to avoid prescribing a detailed definition of the Muslim religion which may not be accepted by all adherents of Islam; and provides legal certainty for interpretation.

Clause 2

Amends section 3 of the Divorce Act, which provides for the dissolution of a marriage and grounds of divorce. A Muslim marriage may now also be dissolved by a decree of divorce; and essentially, it extends the application of the Divorce Act to Muslim marriages.

Clause 3

Amends section 6(1) and (3) of the Divorce Act, which provides for the safeguarding of interests of dependent and minor children, and extends the safeguarding of interests of minor and dependent children of a marriage to include minor and dependent children of a Muslim marriage; and addresses Women's Legal Centre Trust (WLCT) order that section 6 of the Divorce Act is unconstitutional as it fails to safeguard the interests of minor or dependent children of Muslim marriages in the same manner as children of other marriages on dissolution.

Clause 4

Amends section 7 of the Divorce Act, which provides for the division of assets and for the maintenance of parties. It provides for the insertion of a new sub-section (3A), which extends the application of the section to Muslim marriages; extends the application of sub-sections (4), (5) and (6) to the new sub-section (3A); and extends the factors which the court must take into account when deciding an application for the redistribution of assets in respect of a marriage out of community of property, to include any contract or agreement between the parties in a Muslim marriage where the husband is spouse in more than one Muslim marriage.

The amendment addresses the order in WLCT, which held that section 7(3) of the Divorce Act is unconstitutional because it fails to provide for the redistribution of assets on the dissolution of a Muslim marriage. The amendment in clause 4(d) follows the consideration of an interim measure in the WLCT order.

Clause 5

Amends section 9 of the Divorce Act, which provides that the court may order the forfeiture of patrimonial benefits when a divorce is granted on the grounds of an irretrievable breakdown of a marriage. It extends its application to include a Muslim marriage. It is amended to address the order of the Constitutional Court in the WLCT case, which held that section 9(1) of the Divorce Act is unconstitutional as it fails to provide for the forfeiture of patrimonial benefits on the dissolution of a Muslim marriage in the same terms as other dissolved marriages.

Clause 6

Provides for the application of the Bill to all subsisting Muslim marriages, including a Muslim marriage which was terminated or dissolved in accordance with the tenets of Islam and where legal proceedings for the dissolution of the said Muslim marriage in terms of the Divorce Act, have been instituted but not yet finalised; and which subsisted as at 15 December 2014. It is introduced as a result of the interim measures specified in WLCT.

Clause 6(a) seeks to protect Muslim women whose Muslim marriages were dissolved only in terms of the tenets of Islam, but in respect of which proceedings were instituted in terms of the Divorce Act for a civil dissolution.

Clause 6(b) seeks to protect Muslim women whose Muslim marriages subsisted as at 15 December 2014 by providing for the application of the Divorce Act to those marriages.

Retrospective application of this clause is limited to balance the rights and interests of Muslim women and children and third parties, and to limit potential unintended consequences

Clause 7

Short title of the Bill.

(See document)

Discussion

As no Member wished to make any input on the presentation content, the Chairperson indicated that the Select Committee would publish the Bill for public comments, and the Committee would further deliberate on the public inputs and this Bill.

DoJCD on Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill

The Chairperson gave an overview of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), and said that the Constitutional Court had declared certain sections of RICA unconstitutional. The amendment bill was to give effect to the 2021 AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; and the Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others. The Constitutional Court had given Parliament a three-year period, which was sufficient time to address the constitutional defects, and the deadline was 3 February 2024.

Deputy Minister Jeffery emphasised that the Department had maintained its position that a complete overhaul of the Act was necessary in the long term. That was why the Court had granted the Department three years instead of the two-year period which was normally granted. The plan had been disrupted by COVID and senior officials passing on, and the other official who had been working on the Bill had become unwell. The Department had had to temporarily abandon the overhaul and instead focus on the amendments. Since the Minister was still committed to overhauling RICA, the departmental officials would give an update on how far that process was. The current amendments were an interim measure until that overhaul takes place.

The Department had subsequently held public hearings. Generally, the complaints were that the Bill should address broader issues, such as records obtained under s205 of the Criminal Procedure Act, subpoenas and the lack of a safeguard for that. The DA speaker in the House had raised the issue of registering SIM cards yesterday, which Mr Jeffery agreed was not working as well as it should be. He guaranteed that all those issues would be part of a broader review. In the National Assembly, one amendment was made related to RICA currently allowing more than one designated judge being appointed, rather than only one judge being appointed.

Ms Botha took the Committee through the presentation.

The Bill emanated from the unconstitutionality of RICA. Reasons that underpinned the ConCourt’s judgment were provided to the Committee.

The Bill seeks to amend RICA to address the issues decided in the Amabhungane case. These were the notification issue; independence issue and designated judge; ex parte issue; management of information issue; and journalists and practising lawyers issue.

Other amendments were to:

• insert certain definitions;
• provide for the designation of independent designated and review judges;
• provide for the powers and functions of the review judge;
• provide for the tenure of designated and review judges;
• provide for adequate safeguards where the subject of surveillance is a journalist or practising lawyer;
• provide for post-surveillance notification;
• to provide adequate safeguards to address the fact that interception directions are sought and obtained ex parte;
• to provide for adequate procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully;
• to provide for procedures to be followed for processing, examining, copying, sharing, disclosing, sorting through, using, storing or destroying of any data;
• to provide for principles for the safeguarding of data when dealing with the management of data; and
• to provide for matters connected therewith.

Details of amendments were provided to the Committee clause-by-clause.

(See document)

Ms Kalay Pillay, Deputy Director-General: Legislative Development and Law Reform, DoJCD, confirmed that the Department had already started the consultation process. The first groups that were among those to be consulted were government entities. Though the consultation closing date was on 27 October, it was later extended to 3 November. She anticipated that some major inputs were still yet to be submitted.

The Department would be consulting the private sector as well. The Minister had started the process of discussions with major network service providers on the issue of SIM cards.

It was planned that the Department would submit a draft bill to Cabinet by June next year. Although the issue was a highly technical and complex matter, given the sufficient time, she was confident that the Department would be able to stick to the deadline as proposed.

Adv Tsietsi Sebelemetja, Acting Chief Director: Legislative Development,  added that the research process on the Bill would be concluded at the end of March 2024. The Department would then develop a bill and take it to the Cabinet.

Discussion

As no Member wished to make any input on the presentation content, the Chairperson indicated that the Select Committee would publish the Bill for public comments. The Committee would then further deliberate on the public inputs and this Bill.

DoJCD on Cannabis for Private Purposes Bill

The Chairperson said that the Cannabis for Private Purposes Bill created a new legal framework to govern cannabis for private use by adults, and alternatively to deal with children with cannabis use. This was in line with the Constitution 1996 and the Constitutional Court judgment on Prince.

Deputy Minister Jeffery said that this Bill was the sixth oldest Bill in Parliament that had been introduced in 2020. The Bill emanated from the Constitutional Court's Prince judgment. The use of cannabis had been de-criminalised for five years. The initial step which the Department had undertaken was to comply with the Constitutional Court’s judgment on the de-criminalisation of the private use of cannabis by adults in private places. The understanding was that there had to be other legislation to deal with the growing of cannabis.

He told the Select Committee that the Portfolio Committee on Justice had had three public hearings on the Bill. In its first public hearing, the Portfolio Committee tried to expand the Bill to meet the concerns of stakeholders such as Rastafarians and some other groupings. However, the Portfolio Committee later felt the expansion had gone too wide.

The Bill addressed the issue that children who were caught in possession of cannabis should not be criminalised, in line with child law.

The Bill limited the definition of cannabis to the tops of the flower bits, which was where the tetrahydrocannabinol (THC) is.

However, the Bill did deal with cannabis for reward, which was being criminalised. The rationale was that there would be trading opportunities through a permit system to regulate that at a later stage.

The Bill had received broad support from many stakeholders, including the Cabinet and most political parties in the National Assembly, with the exceptions of the ACDP and the Freedom Front Plus.

Mr Makubela Mokulubete, Legal Adviser, DoJCD, took the Committee through the presentation.

He said the Bill emanates from the Constitutional Court judgment of the Minister of Justice and Others v Prince, in which the Constitutional Court declared ss4(b) and 5(b) of the Drugs and Drug Trafficking Act and ss22A(9)(a)(i) of the Medicines and Related Substances Act unconstitutional.

The content of the Bill was presented to the Select Committee.

In terms of the Prince judgment, if Parliament failed to promulgate legislation to correct the constitutional defects by 17 September 2020, or within an extended period of suspension, the reading-in discussed in paragraph 3, would become final. The deadline set by the ConCourt had lapsed, and as such the reading-in had become final.

In Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41, at paragraph [50], and Minister of Justice and Correctional Services v Ramuhovhi and Others [2019] ZACC 44, at paragraphs [13] and [14], the Constitutional Court held that interim relief to address constitutionally defective legislation, coupled with a period within which legislation must be promoted to correct such legislation, had the effect that the interim relief continued to apply until Parliament changes it. Therefore, a failure to comply with the deadline set by the Constitutional Court did not bar Parliament from passing the Bill after the expiry of the deadline.

(See document)

Discussion

The Chairperson pointed out that Clause 4 (Offences and Penalties) had made reference only to passengers regarding transportation of cannabis, but no reference was made to drivers or owners of vehicles who should have a bigger responsibility to ensure lawful transportation. Similarly, clause six also omitted owners of vehicles.

Mr Mokulubete explained that under paragraph 242(d) in the presentation, there was a provision for offences that were related to drivers who transport cannabis. In the same paragraph, it also made a provision for the contravention of drivers who failed to comply with the conduct the Minister put in place. There were clear conditions that both drivers and passengers would have to adhere to on a public road. Regulations would be made in relation to clause 6 to stipulate those conditions.

As no other Member wished to make any input on the presentation content, the Chairperson indicated that the Select Committee would advertise the Bill for public comments, and the Committee would then further deliberate on the public inputs and this Bill.

The Chairperson adjourned the meeting.